USCA1 Opinion

February 5, 1992

____________________

No. 91-1471
VICTOR J. IRLANDA ORTIZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Campbell, Torruella and Cyr,
Circuit Judges.
______________
____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
________________________
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazq

_______________________
__________
Garcia, Assistant United States Attorney, and Amy S. Knopf, Assist
______
____________
Regional Counsel, Department of Health and Human Services, on br
for appellee.
____________________
____________________

Per Curiam.
___________

Claimant, Victor

appeals from the

judgment of the Federal

the

Puerto Rico affirming

District of

Secretary of Health and Human

J. Irlanda

Ortiz,

District Court for

the decision

of the

Services that claimant was not

entitled to disability benefits.

We affirm.

BACKGROUND
__________
Claimant filed

an application for

disability benefits on August 18,

date of 1978 and claimed
back, nerves, arms,
pressure.

1983.

Social Security

He alleged an onset

disability due to problems with his

legs, headaches, stomach and

Claimant's insured

status expired

high blood

on March

31,

1984.

The

application

was

reconsideration.

On July 31,

an administrative

law judge

was not

disabled.

reconsideration

denied

the

and

upon

1984, after holding a hearing,

(ALJ) determined

The case

under

initially

was

new

that claimant

remanded,

mental

however,

health

for

regulations

contained in the Disability Benefits Reform Act of 1984.

December

The

same

ALJ

conducted

18,

1987, concluded

that

another

hearing

and on

claimant suffered

from

severe musculoskeletal and mental impairments which prevented

him

from

laborer.
pain

and

returning

to

The ALJ did

found

that

his

as

a construction

not credit claimant's

allegations of

his

past

work

emotional

problems

did

not

significantly reduce his ability to perform the full range of

sedentary work.

Using the Medical-Vocational Guidelines (the

-2-

Grid), Table No. 1, Rule 201.23, Pt. 404, Subpt. P., App.

2,

as a framework, he found that claimant was not disabled.

The

Appeals Council ordered a remand.

the ALJ to reconsider claimant's

It directed

complaints of pain in light

of Avery v. Secretary of Health and Human Services, 797 F.2d

_____
_______________________________________
19 (1st Cir.
that

1986).

Specifically, the Appeal Council stated

where the objective

the degree

of pain

consider the daily

medical evidence does

alleged by claimant,

not support

the ALJ

also must

activities described by claimant

and his

prior work record.

On remand,
allegations

of

the

ALJ

disabling

again

pain,

discounted

noting

claimant's

that

the

record

contained reports in which claimant was described as being in

no physical distress.
for long

The

periods of time

ALJ also relied on the fact

claimant was not in

that

any treatment

for his back problems.

The ALJ inferred that had claimant's

pain been

alleged, claimant would

as severe as

treatment.
that

As for

a slight

did not reduce

of

sedentary

his mental impairment, the

difficulty in maintaining

Using

the

same

ALJ concluded

social functioning

claimant's ability to perform

work.

have sought

the full range

Grid rule,

the

ALJ

concluded that claimant was not disabled.

On
remanded the
ALJ's

January 19, 1989, the Appeals Council once more

case to

conclusions

as

the ALJ.
to

It apparently

claimant's

-3-

accepted the

complaints

of

pain.

However,

it decided

required

to

claimant

given

determine

impairments.

vocational

the

both

his

number

expert testimony
of

exertional

jobs

was

available

and

to

non-exertional

As a result, the ALJ held a hearing on June 14,

1989 at which
the Grid as
posed

that

a vocational expert (VE) testified.

a framework and the answers

to the VE,

discussed infra,
_____

that claimant was not

disabled.

claimant's request for review on

Based on

to the hypothetical

the ALJ

still concluded

The Appeals Council

January 9, 1990.

denied

Thus, the

ALJ's decision became the final decision of the Secretary.

Claimant appealed
district court.
who

The case

determined,

Secretary's
evidence.
However,

was

He therefore
the

recommendation.

to the

was referred to a magistrate judge

without

decision

the Secretary's decision

much
not

explanation,
supported

by

recommended vacating

district

court

did

not

that

the

substantial
the decision.
adopt

this

Rather, it affirmed the Secretary's decision

on the ground that the record contained conflicting evidence.

MEDICAL EVIDENCE
________________
The record

reveals that claimant

only from the

State Insurance Fund

for

was insured.

which he

He

sought treatment

(SIF) during the

initially had

period

pursued such

treatment in connection with an accident he sustained at work

in July 1978.

The

progress notes from

the SIF reveal

the

following sporadic course of treatment:

-4-

(1)

1978.
____

In
October
in

1978, claimant

was evaluated

only

once.

On

19, an examination revealed that there was stiffness

the lumbosacral paravertebral muscles.

post-traumatic
nucleus

chronic

pulposus

low

(HNP).

claimant had been under

back
The

The diagnosis was

syndrome
note

also

and

herniated

indicates

that

treatment with improvement; however,

there are no medical records that reflect such treatment.

this

time,

claimant

was

placed on

anti-inflammatory

At
and

muscle relaxant medication.

(2)
In
This

1979.
____
1979,

claimant also

was

examined only

once.

neurological examination disclosed pain upon palpation

at L4-L5

and positive

straight leg

raising.

Nonetheless,

claimant's reflexes were

adequate.

An EMG

was recommended.

This test was performed in November and was normal.

(3)

1980.
____

After

a lapse of almost one year, claimant visited

the SIF four times.

On September 2, his straight leg raising

was limited to 45 degrees bilaterally but there was no muscle

weakness.
at

L5 with

anxiety.
found
The

The diagnosis was suspected

a herniated
In October,

disc at

lumbar radiculopathy

L4-L5 and

a physiatrist

depression with

examined claimant

and

marked muscle spasms; again, there was motor weakness.

diagnosis

was

chronic

painful

lumbosacral

syndrome.

-5-

However,

on

November

11,

claimant's

condition

had

claimant's

range of motion

the
improved

(4)

1981.
____

and

on

was preserved, his

raising was negative bilaterally and

motor deficits.

physiatrist

noted

that

November

24,

straight leg

there was no sensory or

Claimant did not receive any treatment for his back

in 1981.

indicated

that

However,

psychiatric evaluation,
claimant was

he was oriented,

judgment was adequate.

health center.

There

performed

on July

insecure, afraid

his memory was

and anxious.

conserved and his

Claimant was referred

are no records

9,

to the mental

of any

mental health

treatment subsequent to this evaluation.

(5)

1982.
____

The next note from the SIF, dated January 22, 1982,
indicates

that claimant's range

moderately limited but

Straight

leg raising

discharged with 15%

in

January, that

until his

he could walk on his

was positive.

disability.

anxiety neurosis

psychiatric

impairment
examination,

evaluation to

was

related to

claimant

was

At

his trunk was

heels and toes.

this time,

A psychiatrist

claimant should

not

undergo a

had improved.

visit to the SIF was not until

a

of motion of

he was

noted, also
myelogram

Claimant's

next

November 29 when he underwent

determine

his

work

logical,

-6-

whether
accident.
coherent,

his mental
At

this

relevant,

oriented,

and realistic.

intellectual capacity

His

which,

he

was

average, and his

The evaluating psychiatrist

disorder

affect

adequate,

judgment acceptable.

diagnosed a generalized

concluded,

was

his

not

anxiety

related

to

the

accident.
(6)

1983.
____

In 1983, claimant's

condition improved even though

a CT scan, performed on September 19, showed a herniated disc

at

L5-S1.

conducted.
disclosed
motion,
and no

no

Two

further

On

November

significant

neurological
29,

limits

evaluations

physiatric
on

were

examination

claimant's

range

of

no pain upon palpation, no significant muscle spasm,

deficits in his

recommended.

reflexes.

Physical therapy

was not

A note dated December 7 indicates that claimant

reported that he had experienced improvement of his condition

with the use of medications.
(7)

1984.
____

Claimant
1984.

received no

treatment

for his

back

in

In January, the SIF re-evaluated claimant's emotional

condition.

The

reviewing

psychiatrist

determined

that

claimant's anxiety neurosis was related to his back problems.

He also

recommended psychotherapy

as a

means of

claimant's mental status to the point where surgery

performed.

An initial evaluation

Claimant was described

improving
could be

was conducted on March 6.

as being in good

physical condition.

-7-

His

thought content was relevant and coherent; his attention

span was good,

oriented.

his present memory was conserved,

His affect

was appropriate,

psychiatrist described him

but the

and he was
evaluating

as being uncooperative concerning

the testing of conceptual clarity, mathematic operations, and

his remote memory.

The

final

report,

psychiatric

diagnosis was anxiety neurosis.

after

indicated only that claimant

and well oriented;
The report

five

therapy

sessions,

presented as coherent, logical,

his affect was described

indicated that

The

claimant was

as appropriate.

being treated

with

medications.
Apart from the

SIF records, there are

three other

medical

reports relevant to the period of claimant's insured

status.

The first is a psychiatric consultation performed on

January 3, 1983.
able to

Claimant's wife reported that claimant was

take care of his own personal

any household chores.

walking

and smoking;

needs, but did not do

Claimant's activities were

he was

described

listed as

as quarrelsome

and

irritable.
had poor
and in

The consulting psychiatrist stated that claimant

muscle tone, but

no obvious

otherwise appeared to

stress.

His

mental status exam revealed

answering
claimant's

few

be healthy

gait appeared normal.

The

that claimant was uncooperative,

of

the

doctor's

speech

was

clear,

questions.
there

disturbances and his ideas were

Nonetheless,

were

no

goal oriented.

perceptual
His

thought

-8-

processes
The

were logical,

psychiatrist

abilities because

coherent,

could

not

he refused

organized and

relevant.

claimant's

cognitive

test

to respond

to the

questions.

She concluded that claimant's mental problems were "part of a

life

long pattern of personality traits that are maladaptive

and

inflexible,

producing

occupational adjustment."
viewed as "guarded,"
deterioration was

impairment

social

and

Although claimant's prognosis was

the doctor also noted

"slight."

in

She did

that personality

not indicate

whether

psychiatric treatment was indicated.

The

second

evaluation,

conducted

just

after

claimant's insured
neurologist
physician

at

the

there

no sensory

reflexes

were

expired, was

behest of

noted that

atrophy and
His

status had

claimant's

were

no

deficits in

normal

performed by

and

attorney.

motor

weaknesses

This
or

claimant's extremities.

straight

leg

raising

was

negative bilaterally, although claimant experienced some pain

in

his left leg at 80

heels and
mild

toes but only with

tenderness

diagnosis

to 90 degrees.

to

some limping.

palpation

was chronic

He could walk on his

in the

low back pain

There

lumbar

was only

area.

syndrome.

The

The doctor

concluded that claimant could not perform his prior work.

This examiner also completed a residual
capacity (RFC) assessment.

Claimant was described

able to occasionally lift files or ledgers;

functional
as being

his abilities to

-9-

stand, walk and sit were limited to less than six hours
in

an

eight-hour

workday.

balance, stoop, kneel,

He

could

crouch and crawl.

reaching and handling was unlimited.

each

occasionally climb,
His capacity

for

However, claimant could

not use heavy effort to push or pull.

Finally,

a non-examining

consultant reviewed

record and completed a mental RFC assessment.

diagnosed
tension
daily

an affective

This physician

characterized by

anxiety,

and sadness which resulted in slight restrictions in

living

functioning.

procedures

activities
She

significantly

and

disorder

the

and

moderate

determined

in

claimant

social
was

not

limited in his abilities to remember work-like

and to understand,

simple

that

limits

remember and carry

instructions.

Claimant

also

out short

had

minimal

limitations in sustaining an ordinary routine without special

supervision,

asking

maintaining

socially

alone.

There

abilities to

questions

and

appropriate

was no evidence

requesting
behavior

assistance,

and

of limitations in

respond to changes

traveling
claimant's

in his work setting

and to

make simple work-related decisions.

Claimant
abilities in
of

had

moderate

limits,

maintaining concentration for

time, performing

within

the

confines

however,

in

his

extended periods
of

schedule,

maintaining regular work attendance, being punctual and being

able to complete a normal work week without interruptions due

-10-

to

psychologically based

limits

symptoms.

He

also had

moderate

in interacting with the general public, accepting and

responding to

criticism

and getting

along

with

coworkers

without distracting them.

Based
with

the following

limited
and

on this evidence,

is

relevant,
simple

hypothetical:

to sedentary work

who

the ALJ presented

individual

where he can

attentive,

passive,

to concentrate

and

able to

who

on

relate

coherent,

and carry

to

testified

that such

an

individual could

sorter, classifier, assembler

the

electronics

hypothetical
back

pain

anxiety

field.

claimant's
which

relating to others.
claimant

poor

ALJ

then

him from

memory

and

labeler in

of

concentrating,
marked

The

a packer,

added

subjective complaints

prevents

and fear,

be

of small parts, or
The

out

coworkers and

supervisors, but unable to deal with the general public.

VE

is

alternate positions

cooperative,

oriented, able

instructions

an

the VE

to

the

constant
marked

difficulty

in

To this hypothetical the VE replied that

would have problems

in complying with

the minimum

requirements of the above jobs.

DISCUSSION
__________
The Social

Security Act provides that

the factual

findings of the Secretary shall be conclusive if supported by

"substantial evidence."
the

Secretary's

42 U.S.C.

findings

405(g).
.

if

"We must uphold

reasonable

mind,

-11-

reviewing the evidence in the record as a whole, could accept

it

as adequate

to support

his conclusion."

Secretary of Health and Human Services,

________________________________________
(1st Cir. 1981).
to determine
from the

courts.

did

not

the

Id.
___

evidence is

218, 222

of the Secretary

to draw

Indeed, the
for

v.

inferences

resolution of

the Secretary,

not

the

record

to

Id.
___
We

support

credibility and

record evidence.

conflicts in

647 F.2d

It is the responsibility

issues of

Rodriguez
_________

find

substantial

the finding

evidence

that claimant's

preclude

him

from

in the

exertional impairments

performing

sedentary

work.

Claimant maintains that his back pain resulted in more severe

strength limitations.
medical impairment

It is

true that there is an objective

-- a ruptured

disc at L5-S1 --

that can

reasonably be expected
21.

Yet, we

claimant's
alleged.
found

to produce pain.

believe the ALJ

complaints
More

than a few

claimant

little spasm.

with

did not err

not

in deciding that

credible

to

of the evaluations

no motor

or

797 F.2d at

strength

the

extent

from the SIF

weaknesses and

Indeed, the last SIF note of record concerning

claimant's back,
diagnosis of

were

Avery,
_____

made after the

_____

a ruptured

CT scan that resulted

disc, indicates

that claimant

in a
had

improved, experienced no pain on palpation and demonstrated a

good range of motion.

-12-

Further,

the

record

reveals

that

claimant

apparently did not receive any treatment for his back in 1981
and 1984; he was seen only once in 1979 and once in 1980.
view these

gaps in

Secretary

concluded

the medical record

claimant's allegations

that

this

as "evidence."

evidence

of unrelenting

conflicted

pain.

The

We
The
with

Secretary

then drew the inference that claimant would have secured more
treatment had

his pain been

stated, the resolution of

drawing

of

Secretary.

conclusions
See
___

as intense

as alleged.

conflicts in the evidence

from

such

evidence

Rodriguez, 647 F.2d at 222.

_________

accept the Secretary's determinations

are

As we
and the
for

the

We accordingly

relating to claimant's

exertional impairments.
Claimant's non-exertional impairment
condition -- presents a closer case.
claimant's

anxiety

disorder

sedentary

work only

to the

deal with the general

tasks.
ALJ

-- his mental

The ALJ determined that

reduced

the

full

range

extent that claimant

public or perform complex

of

could not
or detailed

This conclusion was reflected in the hypothetical the

posed to

the

VE.

She

responded

by listing

several

unskilled jobs such an individual could perform.

Social

85-15 contains

two

sets of mental capabilities required for unskilled work.

The

first

Security Ruling

group includes the

and carry

(SSR)

abilities to

out simple instructions,

-13-

understand, remember

to respond appropriately

to the normal work environment and to deal with changes in

routine

work

describe

situation.

claimant as being

his judgment and

The

The

examining

psychiatric evaluations

coherent, relevant and oriented;

attention span were described

consultative

conclusions.

SIF

psychiatric

As

for the

physician,

perform

simple

work

request

assistance

as adequate.

reached

form completed

specified

tasks,
and

examiner

RFC

it

that

follow

handle

an

similar

by the

claimant

ordinary

changes in

the

noncould

routine,
work-place

setting.
The second inquiry concerns a claimant's ability to
cope with

the demands

of any work

environment.

SSR 85-15

states that these demands include the need to be punctual and

to

attend work

on a

regular basis,

supervision and the capacity to

an

entire

day.

psychiatric

Although

who completed

claimant

was

moderately

functioning.
occupational

the

Such

the

SIF

evaluations

address these

RFC assessment
limited

limitations

in

possibly

and

the

issues, the

indicated that

these

areas
erode

of
the

base available to claimant and could affect the

performance of even the jobs listed by the VE.

Secretary of Health and Human Services, 890
________________________________________
(1st

to accept

remain in the work place for

consultation did not

physician

the ability

Cir. 1989).

The

question is

how much
___ ____

See
___

Ortiz v.
_____

F.2d 520,
the

527

range of

sedentary, unskilled work is decreased.

See id.
___ ___

-14-

Although
different

the

record

conclusion,

we

arguably

believe

could

there

is

support

substantial

evidence to support the Secretary's decision

that claimant's

capacity

work

for

significantly
See
___

the

full

reduced.

Thus,

Rodriguez Pagan
________________

Services, 819
________

v.

F.2d 1, 3

U.S. 1012

(1988).

examining

physician,

claimant's

range

of

such

we must uphold

was

not

his decision.

Secretary of Health and Human

_________________________________
(1st Cir. 1987), cert.
_____

Apart from the

there

is

conclusions of

no

ability to accommodate

denied, 484
______

other

the non-

indication

routine work

that

demands was

inadequate -- either slightly, moderately or markedly.

Moreover,

aside

from

the

five therapy

sessions

claimant attended through the SIF,

there is no record of any

other mental health therapy during

his insured status.

result,

there is

no

way

of

telling

whether

As a

psychiatric

treatment could have improved these "marked" limitations.

We

do not think that a

assert entitlement

claimant with a diagnosed impairment may

to disability benefits

securing a determination

concerning what, if

options are available to him

or her.

finding of

without at

disability is

least

any, treatment

Indeed, "[i]mplicit in

determination that

existing

treatment alternatives would not restore a claimant's ability

to

work."

Tsarelka
________

v.

Secretary of Health and Human

_________________________________

Services, 842 F.2d 529, 534 (1st Cir. 1988) (per curiam).
________
we

described in

Tsarelka,
________

the Social

As

Security regulations

-15-

specifically
must follow

provide that to qualify for benefits a claimant

prescribed treatment.

404.1530(a),

(b)).

treatment in

this case only

record adequately

The lack of

any evidence

supports the Secretary's

C.F.R.

of sustained

bolsters our decision

that claimant was not disabled.

Affirmed.

Id. (citing 20
___

that the

final conclusion

________

-16-